In Subpoenaing Chelsea Manning, the Government Picks a Likely Needless Fight with the Transparency Community Again

I’m bumping this post from earlier in the week. After refusing to answer questions before the grand jury under a grant of immunity, the Judge in this matter, Claude Hilton, held Chelsea Manning in contempt. She has been booked into the Alexandria jail until she either answers the questions or the grand jury expires. 

Here’s an interview Manning did just before going in for her contempt hearing. 

As NYT first reported, a grand jury in EDVA has subpoenaed Chelsea Manning to testify. She has said she’ll fight the subpoena.

Ms. Manning, who provided a copy of the subpoena to The New York Times, said that her legal team would file a motion on Friday to quash it, arguing that it would violate her constitutional rights to force her to appear. She declined to say whether she would cooperate if that failed.

“Given what is going on, I am opposing this,” she said. “I want to be very forthright I have been subpoenaed. I don’t know the parameters of the subpoena apart from that I am expected to appear. I don’t know what I’m going to be asked.”

The WaPo adds details about a grand jury appearance last year by David House. Notably, he appears to have been asked about the Iraq and Afghan war logs, not the State department cables that have been more central to public reporting based off WikiLeaks releases.

Last July, computer expert David House, who befriended Manning in 2010 at a hacker space in Boston he founded, testified for 90 minutes before the grand jury. In an interview, House said he met the WikiLeaks founder in January 2011 while Assange was under house arrest at Ellingham Hall, a manor house 120 miles northeast of London. Assange was fighting an extradition request by Sweden, where he faced an inquiry into allegations of sexual assault.

Assange asked House to help run political operations for WikiLeaks in the United States. “Specifically, he wanted me to help achieve favorable press for Chelsea Manning,” he said.

House, who testified in exchange for immunity, said the grand jury was interested in his relationship with Assange. “They wanted full insight into WikiLeaks, what its goals were and why I was associated with it,” he said. “They wanted explanations of why certain things occurred and how they occurred. . . . It was all related to disclosures around the war logs.”

The WaPo also argues that Manning will have a tough time fighting this subpoena, which is probably right, though I’m not sure how her legal exposure works given the commutation. She may have a real basis to challenge the subpoena (or at least invoke the Fifth) based off a double jeopardy claim.

Setting aside the legal questions though, I think this subpoena raises real tactical ones. Unless the government believes they need to show a newly-understood pattern of behavior on the part of WikiLeaks dating to before the time Julian Assange took refuge in Ecuador’s embassy as part of a bid to boot him, I think this move is likely to backfire, even from the most hawkish government perspective.

Subpoenaing people for stuff that happened nine years ago, when WikiLeaks’ actions are more immediately suspect in the context of the Vault 7 releases, only makes sense if prosecutors are pursuing some new theory of criminal activity. Contra what Steve Vladeck says to the WaPo (that Assange’s charges last year may be about a 10 year statute of limitations tied to the Espionage Act), prosecutors may be pursuing a conspiracy charge that has continued to more recent years, of which the 2009 actions were the first overt acts (which would also toll the statutes of limitation).

But it’s not just the US government that appears to have a new understanding of WikiLeaks’ actions. So do people who have been involved with the organization over the years, particularly in the wake of WikiLeaks’ 2016 efforts to help Russia elect Donald Trump. The public reversals on supporting Assange from Xeni Jardin, Barrett Brown, and Emma Best have been accompanied by a whole lot of reporting (some of it obviously based on leaks of communications from other former insiders) that lay out activities that go beyond the passive receipt of public interest documents and subsequent publication of them. More will surely be coming.

What journalists and activists are presenting about WikiLeaks doesn’t necessarily get the government beyond a First Amendment defense — certainly not one that might put a lot of respectable investigative reporting at risk. But it does undermine Assange’s claims to be a mere publisher.

And unless there’s a really good legal reason for the government to pursue its own of evolving theory of WikiLeaks’ activities, it doesn’t make sense to rush where former WikiLeaks supporters are headed on their own. In virtually all venues, activists’ reversed understanding of WikiLeaks is bound to have more credibility (and almost certainly more nuanced understanding) than anything the government can offer. Indeed, that would likely be especially true, internationally, in discussions of Assange’s asylum claim.

A charge against Assange in conjunction with Vault 7 or the 2016 election operation might accelerate that process, without foreclosing the government’s opportunity to present any evolved understanding of WikiLeaks’ role in the future (especially if tied to conspiracy charges including the 2016 and 2017 activities).

But getting into a subpoena fight with Chelsea Manning is likely to have the opposite effect.

That’s true, in part, because post-commutation a lot of people worry about the impact renewed pressure from the government against Manning will have, regardless of the legal soundness of it. The government wanted Aaron Swartz to become an informant when they ratcheted up the pressure on him between 2011 and 2013. They didn’t get that information. And his suicide has become a key symbol of the reasons to distrust law enforcement and its ham-handed legal tactics.

There’s even good reason to believe history will likely eventually show that FBI’s use of Sabu as an informant likely didn’t get them what they thought they got. And it’s not just Sabu. It is my strong suspicion that we’ll eventually learn that at key moments, the known instincts and habits of the FBI were exploited just as badly as the good faith efforts of transparency activists, even before the Bureau’s bumbling efforts played the perhaps decisive  role in the 2016 election.

We’re at a moment when, amid rising tribalism, both federal law enforcement and the transparency community are actually reassessing. That reassessment is key to being less susceptible to exploitation, on both sides.

But ratcheting up the stakes, as a subpoena of Manning at this moment amounts to, will reverse that trend.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

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30 replies
  1. Savage Librarian says:

    Marcy, as you say, “That reassessment is key to being less susceptible to exploitation, on both sides.”

    I couldn’t agree more! I am worried about this too.

  2. Reader 21 says:

    Thank you for yet another persuasive and well-argued piece—always nice to see one’s instincts confirmed, albeit more elequently than was swirling about in my head.

    The thought occurs, perhaps there are those, who amidst this reassessment btw LE and the transparency community—do not wish to see said reassessments transpire. Not even a little.

  3. WayneC says:

    For those that need a reminder, from Wikipedia,

    Vault 7 is a series of documents that WikiLeaks began to publish on 7 March 2017, that detail activities and capabilities of the United States Central Intelligence Agency to perform electronic surveillance and cyber warfare. The files, dated from 2013–2016, include details on the agency’s software capabilities, such as the ability to compromise cars, smart TVs, web browsers, and the operating systems of most smartphones, as well as other operating systems such as Microsoft Windows, macOS, and Linux..

    • JamesJoyce says:

      “A little soma for you. In a pill that is red white or blue.”

      I wonder if Nazis had these tech capabilities would the official language today be German instead of English in America.

      Answer: Yes

  4. e.a.f. says:

    Interesting read. Most interesting, “might put a lot of respectable investigative reporting at risk”. In my opinion that is the intent. Trump and his ilk would like nothing better than to put “respectable investigative reporting at risk”. Once that has been accomplished they if not a free pass, a much easier path to attain their goals without the “nuisance” press on the attack. Once you’ve gotten the media to shut up, things become much easier.

  5. Peter the Wolf says:

    “Vault 7 is a series of documents…that detail activities and capabilities of the United States Central Intelligence Agency to perform electronic surveillance and cyber warfare. …..such as the ability to compromise cars,”

    Seems I remember a meme that speculated that Michael Hasting’s alleged “accident” was related to that ability, and happened just before he was going to reveal some “sensitive” material.

      • Richard Feynman says:

        While it may be true that there was no evidence in the Hastings case, there is more than a little circumstantial “probability” that the government was involved in his death. For a long time I did not believe that this was true. A few years back VICE (the long form HBO show) did an episode showing the capabilities of taking over a vehicle. After which, I reversed positions on this. Indeed, wielding a power such as this, I would put the government in a stance of “guilty until proven innocent”. If this power trickles down to the masses, in the future this may be a more complicated issue. Certainly given the kinds of people Hastings had ticked off, his case seems an easy open and shut. I don’t feel like you can have that power and have innocence – regardless of specific culpability.

        • bmaz says:

          Well, that is just nutty. The cops say so, the accident investigators say so, and Mike’s family say so. It is just a stupid conspiracy theory without one shred of evidence whatsoever to support it.

          • AJCarbo12 says:

            Why is it nutty to think certain powers that be would do something like that, in a heart beat. I dont know enough about Hastings accident to make a judgement there, but in general a situation like that likely happens way more often than we realize or want to acknowledge. I think he was just trying to say that we should give more credence to issues like he brought up, ones that we naturally want to deem BS or conspiracy, because to normal people with a conscience, we dont want to believe our fellow man would do something so vile.

            I think thats part of the reason why some people dont believe Trump is the blatant criminal we all know him to be. It can make ones faith in humanity falter if they were to accept the egregious nature and scope of his crimes, along with everyone in his orbit. I guess what I am trying to say is that we shouldn’t just say something as nutty or crazy because its dismissive, and we should only dismiss trolls lol. You may be correct that it wasnt a conspiracy, but its not nutty to believe it could be, because its not as if our country has a clean record when it comes to “conspiracy”. God I hate the stigma behind that word.

            Anyway, I am in no way trying to argue, I am a new reader and poster and figured I would try and get my feet wet, lol. BTW, your site is great and refreshing to read such in depth articles and points of view, who go way beyond the surface level of topics like the MSM. There is no way someone can read all the daily postings and not come away learning something of value pertaining to the topics at hand. Keep up the hard work.

  6. orionATL says:

    the use of the passive voice here:

    “… It is my strong suspicion that we’ll eventually learn that at key moments, the known instincts and habits of the FBI were exploited just as badly as the good faith efforts of transparency activists, even before the Bureau’s bumbling efforts played the perhaps decisive  role in the 2016 election…”

    raises the question of “who”.

    who might this omniscient be? one can imagine cheney. do we have a latter day cheney operating in american politics?

  7. Oraneg says:

    “particularly in the wake of WikiLeaks’ 2016 efforts to help Russia elect Donald Trump”

    Proof?

    • P J Evans says:

      There’s a tag in the right sidebar that says “Wikileaks”. Try clicking on it and reading the posts. Try reading the many posts on Mueller’s investigation.

  8. orionATL says:

    i have absolutely no problems with what bradley manning or julian assange did with the material manning turned over to assange and wikileaks, war logs and state dept communications included.

    pieces of paper aside though, you will look a long time before you get a better look at the reality of the death americans bring to a war, including the extraordinarily excessive power to kill frail humans and the savage desire of americans at the controls of the war machines to use them to kill wantonly with pleasure when unmerited, a desire so ancient and feral it overwhelms fellow-feeling entirely. the medic is the hero.

    i’m thinking of course of the apache helicopter gunship video “collateral murder”:

    http://www.msnbc.com/rachel-maddow-show/wikileaks-posts-combat-video-iraq

    http://content.time.com/time/nation/article/0,8599,1978017,00.html

  9. CaliLawyer says:

    I’m a bit confused by her stance. She claims she already testified about this in her court martial. There might be rules against using those transcripts in a civilian setting – I don’t know. But if they’re asking her questions about 2010 the SOL has passed. What’s with the martyrdom charade? Just testify. Grand juries are always secret. Get over it.

    • bmaz says:

      Yes, this is exactly right. There would be no problem in using a certified transcript from an UCMJ proceeding in a civilian court, especially for impeachment purposes. But it would almost certainly not be allowed as direct evidence unless the witness is unavailable under Rule 804. And Manning is available.

      As to statute of limitations, it may or may not have passed depending on the charges being contemplated. There are possible crimes that have 10 year statutes, and/or if a conspiracy is at issue, it may arguably still be going on. We just do not know. But that is not a defense to a lawfully issued GJ subpoena as to Manning. As you say….Just get over it and testify. What she is doing is quite stupid.

    • orionATL says:

      for all i know chelsey manning may be feeling in the mood for martyrdom, that would not surprise me, but, nonetheless, these days grand juries deliberations are effectively no longer secret, particularly if there exists the political daring and power to violate that long standing rule in any way a political party in power wishes, just as our constitution is no longer a controlling document in our society if the political will and power are vested in a radical political party controlling the executive and judiciary branches.

      e.g.

      https://dailycaller.com/2018/11/26/roger-stone-associate-mueller-jury/

      https://www.nytimes.com/2014/11/26/us/ferguson-grand-jury-weighed-mass-of-evidence-much-of-it-conflicting.html

      • bmaz says:

        This is not right. Grand Juries have the same secrecy as they long have, under Rule 6 of the Federal Rules of Criminal Procedure.

        Witnesses, as in your first link, have always been free to discuss their testimony and experience.

        Your second link involves a state level GJ, and they sometimes have much different rules as to GJ’s than the federal rules. But in that case, it was the prosecutor himself that made the disclosure along with Wilson, the witness.

        It may “seem” as if there is less secrecy now, but there really is not. The same rules apply, even if there are more media and social media availability for excepted discussion to thrive in.

        • orionATL says:

          thanks, bmaz.

          yes people who testify can talk, only officers of the court are under silence restrictions as i understand it. but as you say info does get out and get printed. i am amazed at what we have learned about the mueller g.j. deliberations over time, not least from white house/presidential lawyers. further, by the time several connected (by their mutual involvement) g.j. subjects get thru talking one can guess a lot of the direction and even specific questions the g.j. is interested in.

          nonetheless, i am a bit skeptical of manning, though i can understand that in her head she may just be mad as hell at being what she would call being harrassed by dear gov.

          • bmaz says:

            You are not wrong in the least that there “seems” to be more out in the open, just not sure there really is as opposed to more ways to see what was always permissible.

            As to Manning, that is tough. I would like the best for her, but this is a really stupid play.

  10. orionATL says:

    If you want to listen to the the Apache gunship video then you need to go to the MSNBC article and press on the blue word “report”. a YouTube video will show up allowing you to watch the entire “collateral murder” video that Wikileaks decoded and put together.

    Is well worth watching. you’ll never forget it.

  11. orionATL says:

    bmaz 3/[email protected]:30am

    Actually, I think you’re probably right bmaz, there are more ways for information to be made available to the public and probably more interest in knowing what is transpiring in some grand jury investigations these days, e.g., police violence.

    • bmaz says:

      I think that is right, and from what I see, it is. But I have a real, though still small, window on it, so who knows. It is kind of a good question.

  12. Rapier says:

    Can someone point to a ‘leak’, where the person who released the info was prosecuted, where the information actually made any difference? Difference in terms of policy change or even the politics of the issue involved. Collateral Murder is war porn for conservatives. I can almost hear the cheering in the background. Ms Winner is sitting in jail for revealing probable Russian hacking of voting hardware and as of last week DNI Coats was doing back flips trying to keep information f̶r̶o̶m̶ ̶l̶e̶a̶k̶i̶n̶g̶ about foreign meddling in our elections to Senators. It’s like you can’t even make this stuff up.

    Leaking barely even rates as Quixotic. The whole exercise seems sort of sad now.

  13. 'Stargirl says:

    I say it’s an attempt by the fascists to imprison Chelsea, in a way of reversing Obama’s commutation…and their transphobia is reeking.

    • bmaz says:

      That is absolutely absurd. It is a legally issued and proper subpoena. She is detained solely because of her own action and silly, and legally ludicrous, refusal to testify.

      • Doctor Jay says:

        So. There are things I know, and things I don’t know.

        Something I know is that this administration is highly transphobic, and will use action against trans people as frequently as it can to feed its political position with its base. To wit, trans people in the military, trans people being issued visas with their identified gender on it, and so on. This is a clear political stance.

        Things I know less about are grand jury investigations and the ins and outs of them. This particular one was described as being “revived” by this administration. Considering how friendly they are otherwise to WikiLeaks, it raises an eyebrow. Someone at the policy level decided to push on something that someone else had decided to stop pushing on. So why did they take that decision? I think it’s possible to spend the resources on an investigation that will result in Manning getting a subpoena that she doesn’t want to even appear before.

        I mean, yeah, I don’t get her behavior, but if it was predictable to the government, then they get headlines where they’ve put Chelsea Manning, traitor and freak, back in jail.

        You think this isn’t possible? I’d like to learn why.

        • bmaz says:

          Here is what I do know: Manning’s detention is entirely appropriate. She has no legal basis in any regard. The bleating bullshit about her legal detainment is just that. How do I know? Long time doing it, and having been detained myself once for having properly asserted an attorney/client privilege claim. Manning has no privilege or legal claim in any regard. It is simply asinine.

          • Doctor Jay says:

            What you are saying does not contradict with what I said, or what Stargirl said. At all. Not one little bit.

            I don’t understand Manning here either. But to forward the theory I have, I don’t have to understand Manning, I just have to be able to predict that Manning will do this. I don’t think it’s a hard call.

            Let me be clear. I do not approve of Mannning’s leak. She gave her word. She took an oath. She justly deserves punishment. I see little in the leaked materials that justified it. Particularly all the embarrassing diplomatic cables.

            Manning’s choices don’t determine why the DOJ reopened this investigation and sent her a subpoena. Not at all.

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